EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, January 17, 2009

Floods Of South Dakota: Incoming SD Legislator Plans To Propose New Child Molestation Character Evidence Rule

South Dakota does not currently have a rule of evidence that allows for the admission of a criminal defendant's prior acts of child molestation when he is charged with child molestation.  But if an incoming lawmaker has his way, that will all soon change

Like its federal counterpart, Federal Rule of Evidence 404(b), SDCL 19-12-5 provides in relevant part that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith."  In other words, evidence that a criminal defendant charged with child molestation had previously molested children would be inadmissible to prove that he had a propensity to molest children and that he likely acted in conformity with that propensity at the time of the alleged crime.  Or, to put it more simply, that evidence would be inadmissible to prove, "Once a child molester, always a child molester."

But, this actually isn't the case in trials conducted under the Federal Rules of Evidence because Federal Rule of Evidence 414 states that:

     "In a criminal case in which the defendant  is accused of an offense of child molestation, evidence of the defendant's commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant."

As I have noted before, this Rule was "enacted as part of the Violent Crime Control and Law Enforcement Act of 1994, despite the overwhelming majority of lawyers, judges, legal organizations, and law professors opposing the laws when it was submitted for public comments."

But while Congress added this Rule to the Federal Rules of Evidence, most states, including South Dakota, have not followed suit.  Recently elected South Dakota State Rep.-elect Lance Russell would like to change that.  He plans to introduce a bill that would let juries hear evidence of prior molestations in trials where the defendant is accused of child molestation.  According to Russell, "state juries need to have all the evidence in such cases - as federal juries already do."

Of course, the question is whether the probative value of such evidence is substantially outweighed by the danger of unfair prejudice that it creates.  Most lawyers, judges, and law professors answered this question in the negative, and, as I have noted before, I agree with them.  Now, the question will be where South Dakota legislators fall on the question.   



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